STATEMENT

Fair Work Act 2009
s.157—FWC may vary etc. modern awards if necessary to achieve modern awards objective

Application to vary the Clerks – Private Sector Award 2020
(AM2020/95)

Joint Application to vary modern award to achieve the modern awards objective – application to extend the operation of Schedule I – Award flexibility during the COVID-19 pandemic – research – draft survey.

1. Background

[1] On 28 March 2020 we issued a Decision 1 granting a joint application filed by the Australian Industry Group (Ai Group) and the Australian Chamber of Commerce and Industry (ACCI), to insert a new schedule, ‘Schedule I–Award flexibility during the COVID-19 pandemic’, into the Clerks – Private Sector Award 2020 (the Clerks Award). The new schedule came into operation on 28 March 2020 and was to cease to operate on 30 June 2020, unless extended. That initial joint application was supported by the Australian Council of Trade Unions (ACTU) and the Australian Services Union (ASU).

[2] In June 2020, Ai Group and ACCI made an application to vary the terms of Schedule I and its period of operation. This application was granted at the conclusion of a hearing on 30 June 2020 and reasons for the decision were published on 9 July 2020. 2 Following this variation the Schedule provided flexibilities in relation to:

•  The spread of ordinary hours of work for employees working from home (clause I.2.1);

•  agreed temporary reductions in the ordinary hours of work (clause I.2.2); and

•  the taking of annual leave (clause I.2.6).

[3] The variation of the Schedule in June 2020 also included two new safeguards which are similar to those that apply to all ‘JobKeeper enabling directions’ under Part 6-4C of the Fair Work Act (2009) (the Act):

•  in effect, disputes about the operation of Schedule I can be dealt with by the Commission, by arbitration; and

•  any direction or request given by an employer under Schedule I must be given in writing and does not apply to the employee if the direction is unreasonable.

[4] On 24 September 2020, Ai Group and ACCI made a further application to extend the operation of Schedule I to 29 March 2021. The extension to 29 March 2021 was opposed by the ASU, however, they advanced a compromise position and suggested that the operation of the Schedule be extended to 30 November 2020.

[5] Following discussions between Ai Group, ACCI and the ASU all parties agreed that the operation of the Schedule should be extended until 30 November 2020. This left one issue in dispute in relation to clause I.2.1. The clause is set out below:

I.2.1 Ordinary hours of work for employees working from home

(a) Instead of clause 13.3 (Ordinary hours of work (employees other than shiftworkers), for employees working from home by agreement with the employer where an employee requests and the employer agrees, the spread of ordinary hours of work for day workers is between 6.00 am and 10.00 pm, Monday to Friday, and between 7.00 am and 12.30 pm on Saturday.

(b) Day workers are not shiftworkers for the purposes of any penalties, loadings or allowances under the award, including for the purposes of Part 6—Shiftwork.

(c) The facilitative provision in clause 13.4 (Ordinary hours of work (other than shiftworkers)), which allows the spread of hours to be altered, will not operate for the employees referred to in clause I.2.1(a).

[6] ASU and the ACTU submitted that the spread of ordinary hours in clause I.2.1 should be amended to between 6.00 am and 9.00 pm, Monday to Friday, and between 7.00 am and 12.30 pm on Saturday. Ai Group and ACCI submitted that the clause should remain unchanged.

[7] In a decision issued on 6 October 2020 3 (the 6 October decision) we decided to extend the operation of Schedule I until 30 November 2020. We also rejected the ACTU and ASU’s proposed amendment to clause I.2.1.

[8] At the conclusion of our decision we set out the following observations in relation to future variations to the Clerks Award:

[89] As we have mentioned, the terms of Schedule I reflect the extraordinary circumstances arising from the restrictions imposed to contain the COVID-19 virus. The restrictions are now easing but the direct economic and social impacts of the pandemic will be felt for some time to come. It also seems likely that there will be a continuing need for flexible work arrangements to assist employers and employees in adapting to the changed conditions and to support the recovery. The facilitation of agreed working from home arrangements looms large in this context.

[90] As noted in the President’s Statement of 31 August 2020:

‘[25] One of the most significant shifts in working arrangements since the start of the pandemic has been an increase in working from home arrangements. Government health advice, encouraging employees to work from home wherever possible, has accelerated what had been an emerging feature of contemporary working arrangements in some occupations and industries.

[91] The President’s Statement went on to observe that while enterprise bargaining was one mechanism available to facilitate working from home arrangements, the evidence suggests that enterprise bargaining is not readily accessible by small businesses.

[92] The President’s Statement also observed:

‘[37] Under modern awards, an employer and an individual employee can reach an agreement on how certain provisions apply including: time off instead of payment for overtime, cashing out or taking annual leave in advance and substitution of public holidays.

[38] Modern awards also include facilitative provisions that enable the flexible operation of provisions in the award such as variation to the span of ordinary hours, 12 hour shifts and the variation of meal breaks by agreement between the employer and the majority of employees affected in the workplace. A right to request flexible working arrangements is also available to some employees under the National Employment Standards set out in the Fair Work Act.

[39] However, most modern awards do not expressly provide for nor deal with issues relating to working from home arrangements.

[40] While working from home is currently possible and permissible in many workplaces, the absence of express provision to facilitate working from home can impose practical constraints on these arrangements. For example, absent an express provision, other award provisions such as the span of hours within which ordinary hours can be worked, continue to apply. This can constrain the utility of working from home arrangements from both the employee and employer perspectives as it requires the employer to pay overtime or penalty payments in circumstances where the employee has sought the additional flexibility in order to meet their preferences.’

[93] We agree with the above observations.

[94] These circumstances suggest that there is a need to consider whether it is necessary to vary the Clerks Award to provide more enduring means of facilitating agreed working from home arrangements. The extension of Schedule I provides the parties with an opportunity to consider whether a more enduring solution is necessary and if so, the form of that solution.

[9] In reaching our decision we accepted the submission of the ASU that there is at present an ‘evidentiary gap’ regarding the incidence of working from home arrangements amongst employees covered by the Clerks Award and the extent to which the flexibility provided by Schedule I has been utilised. We proposed that a survey could be conducted in order to address this evidentiary gap.

[10] The Commission has prepared a draft survey which is attached to this Statement. The draft survey includes questions about:

•  The size and location of the business completing the survey:

•  The number of employees who have been working home since 1 July 2020:

•  The types of support provided to employees when working from home:

•  Changes to the patterns of work for employees working from home: and

•  The number of employees using the extended span of hours when working from home.

[11] The survey questions focus on employees who have been working from home since 1 July 2020. This is because the span of ordinary hours for employees working from home was varied with effect from 1 July 2020 to between 6.00 am and 10.00 pm, Monday to Friday, and between 7.00 am and 12.30 pm on Saturday.

[12] It is proposed that the survey would be administered via an online survey platform and distributed by email by the employer organisations (Ai Group and ACCI) to their members and potentially to the online subscribers to the Clerks Award”. Instructions for completing the survey and a Commission contact will be included in the email.

[13] Interested parties are invited to comment on the draft survey in accordance with the ‘Next Steps’ section below.

2. Research

[14] The 6 October decision directed parties to confer in respect of the variations to the Clerks Award (if any) which are necessary to facilitate agreed working from home arrangements. We noted that a conference would be convened in the week commencing 9 November 2020 to receive a report on these discussions.

[15] In order to provide further assistance to the parties, Swinburne University has been engaged to undertake research to inform the Commission. The research which will consolidate the results of several surveys that provide information on working from home arrangements since the onset of COVID-19 and outline key messages that the data and research are finding. The report is expected to be published in early November 2020.

[16] In addition, as part of new products developed to measure the impact of COVID-19 on Australia, the Australian Bureau of Statistics (ABS) has released the Household Impacts of COVID-19 Survey and the Business Indicators, Business Impacts of COVID-19 which, among other things, collects data on working from home arrangements.

[17] The Household Impacts of COVID-19 Survey considers the impacts of the pandemic on jobs, unpaid care, domestic work, mental health and related services, and life after COVID-19 restrictions. It was initially undertaken fortnightly between April and July and has since become a monthly survey from August. The initial fortnightly surveys were of over 1000 households and one randomly selected person aged 18 years and over who was a usual resident of the household responded to the survey. 4 The monthly survey comprises around 1500 households.5

[18] The Business Impacts of COVID-19 survey provides insights into the impacts and sentiments of businesses operating in Australia under the changing environment caused by the pandemic. The monthly survey consists of a random sample of over approximately 2000 businesses, with over 1200 responses. 6 The September survey asked respondents whether they had staff currently teleworking, defined as people 15 years and over who were employed by a business that was not based at their own home but worked at home during normal business hours for a full or part day.7

[19] Commission staff have prepared the following information notes which have been published on the Coronavirus (COVID-19) updates and advice webpage:

•  Information note – update to payroll jobs and wages (updated 5 October 2020);

•  Information note – working from home (updated 1 October 2020);

•  Information note – government responses to COVID-19 pandemic (updated 28 September 2020);

•  Information note – COVID-19 situation update (updated 28 September 2020).

[20] Each of these information notes will be updated in the coming weeks.

[21] Commission staff will also prepare a research reference list to assist parties which will be published in the coming weeks. This will be similar to the research reference lists prepared for Annual Wage Review proceedings.

3. Next steps

[22] Interested parties are invited to comment on the contents of the survey. ACCI and Ai Group are asked to indicate whether they are prepared to distribute the survey to their members. Submissions should be filed by 2pm on Monday 26 October 2020.

[23] A conference will be convened to finalise the contents of the survey at 12noon on Tuesday 27 October 2020.

PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR723557>

ATTACHMENT – Draft Survey

The Clerks Award & working from home during COVID-19

The Fair Work Commission wants to understand how businesses with employees covered by the Clerks Award have adapted to working from home during the COVID-19 pandemic.

Complete this survey if:

•  You are an employer

•  You have employees covered by the Clerks – Private Sector Award 2020 (the Clerks Award).

Please do not complete this survey if you have an Enterprise Agreement in place which covers all of your employees who would otherwise be covered by the Clerks Award.

You should only complete the survey once, regardless of how many times you have received an invitation to complete the survey.

What will the survey ask?

We will ask you about your business and your employees. The survey includes questions about where your business is, how many employees you have and how many employees are covered by the Clerks Award.

We will also ask you about any working from home arrangements accessed by your employees. The survey includes questions about any changes to how your employees are working their hours while they’re at home. It also includes questions about what extra help, if any, you’ve provided.

How do I know if my employees are covered by the Clerks Award?

The Clerks Award covers employees who mainly carry out clerical and administrative work in the private sector.

This includes:

•  filing and photocopying

•  typing and word processing

•  managing accounts, invoices and orders

•  billing clients and customers

•  maintaining records and journals, including payroll

•  answering calls

•  cash handling

•  operating a telephone switchboard

•  attending a reception desk

•  secretarial and executive support services.

Examples of employees covered by the Clerks Award include:

•  an administrative assistant

•  a receptionist in an accounting firm

•  a bookkeeper in a manufacturing company

•  a clerical employee in a retail head office

If you’re still not sure, you can check with the Fair Work Ombudsman.

What will we do with your responses?

The Commission will use your responses to understand how the flexibility provisions in the Clerks Award are being used by employees and employers during the COVID-19 pandemic.

Survey responses will remain confidential. We will not be able to identify you by your responses.

If you have any questions or concerns about your privacy or how the data will be used, please contact X

Your business and employees

1. Does your business have any employees covered by the Clerks Award?

Note: This means that you use the Clerks Award to set pay and conditions for those employees.

[ ] Yes

[ ] No — End survey. Thank you for participating.

2. Does your business have an enterprise agreement?

[ ] Yes — Go to question 2.1

[ ] No — Go to question 3

2.1. Does your enterprise agreement cover any employees who would otherwise be covered by the Clerks Award?

[ ] Yes, all of them — End survey. Thank you for participating.

[ ] Yes, some of them — Go to question 3

[ ] No — Go to question 3

3. How many employees does your business currently employ?

4. How many of your employees are covered by the Clerks Award (Don’t count any employees covered by an enterprise agreement)?

5. How many of your Clerks Award employees have been working from home since 1 July 2020? (You should include all employees working from home during this period, not just employees who started working from home after 1 July 2020).

6. How many of these employees are:

7. Of the employees working from home since 1 July 2020, have any of them changed their pattern of work. Tick all that apply.

[ ] No change – Go to question 9

[ ] Yes–Starting earlier than usual

[ ] Yes–Finishing later than usual

[ ] Yes–Breaking up working day to accommodate caring arrangements

[ ] Yes–Breaking up working day to accommodate their own working preferences

[ ] Yes–Other, please provide details:

8. How many of your employees that are covered by the Clerks Award and who have been working from home since 1 July 2020 have changed their patterns of work?

[ ] All

[ ] Most

[ ] Some

[ ] None

[ ] Don’t know

9. Have any additional payments or support been provided by the business to employees covered by the Clerks Award who have been working from home since COVID-19 restrictions commenced (i.e. since March 2020)? If yes, please tick all that apply and provide further details below:

[ ] Laptop, computer or other equipment

[ ] Allowance for purchasing office equipment

[ ] Allowance to cover home internet and electricity costs

[ ] Mental health support

[ ] Additional training

[ ] Telephone

[ ] Other, please provide details:

10. Does your business have a policy about working from home?

[ ] Yes

[ ] No

If yes – please provide a copy of the policy by email to X

11. In which state or territory is your business located (tick all that apply)?

[ ] Australian Capital Territory

[ ] New South Wales

[ ] Northern Territory

[ ] Queensland

[ ] South Australia

[ ] Tasmania

[ ] Victoria

[ ] Western Australia

Flexible working arrangements

The standard spread of ordinary hours under the Clerks Award is between:

•  7.00 am and 7.00 pm on Monday to Friday; and

•  7.00 am and 12.30 pm on Saturday.

Normally, an employee who works outside of this spread of hours would be entitled to paid overtime.

The Clerks Award Flexibility Schedule extends the spread of ordinary hours of work. It allows an employee who is working from home to request a change in the spread of ordinary hours of work so that ordinary hours can be worked between:

•  6.00 am and 10.00 pm, Monday to Friday; and

•  7.00 am and 12.30 pm on Saturday.

12. Of your employees who are covered by the Clerks Award and have been working from home since 1 July 2020, how many are regularly starting before 7 am on weekdays? (Regularly means at least once a week).

13. Of your employees who are covered by the Clerks Award and have been working from home since 1 July 2020, how many are regularly working until after 7pm on weekdays:

And of those, how many are regularly working until:

a. 10pm:

b. 9 pm:

c. 8 pm:

d. Another time (please specify)

 1   [2020] FWCFB 1690

 2   [2020] FWCFB 3433

 3   [2020] FWCFB 5199

 4   ABS, Household Impacts of COVID-19 Survey methodology, 6–10 July 2020.

 5   ABS, Household Impacts of COVID-19 Survey methodology, August 2020.

 6   ABS, Business Indicators, Business Impacts of COVID-19 methodology, September 2020.

 7   ABS, Business Indicators, Business Impacts of COVID-19, September 2020